Competence. It's a word whose meaning seems clear. One dictionary defines “competence” as “the ability to do something successfully or efficiently.” Rule of Professional Conduct 1.1 requires lawyers to “provide competent representation to a client,” explaining that “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Under prior Disciplinary Rule 6-101(A)(1), competence meant that lawyers should not handle legal matters that they were not competent to handle.

If we were to conduct a poll, it is likely that most lawyers would respond that competence means have current knowledge about the areas of law in which they practice so that they can properly analyze a client's situation and provide appropriate advice. In other words, don't handle matters they aren't competent to handle.

Comment 1 to Rule 1.1 highlights this basic rule, stating that competence means that “a lawyer employs the requisite knowledge and skill in a particular matter.” This comment cites various factors, including “the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.”

One judge summed up competence with the admonition, “Don't dabble.”

The definition of competence under Rule 1.1 is broader than the judge's. For example, Comment 8 to the rule explains that “to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

The Disciplinary Board has proposed broadening this comment further to include the following sentence, “to provide competent representation, a lawyer should be familiar with policies of the courts in which the lawyer practices, which include the Public Access Policy of the Unified Judicial System.” This amendment would require attorneys to read and know the rules and procedures for any court or other entity before which they appear, and comply with the Public Access Policy that goes into effect on Jan. 6, 2018, and requires lawyers and unrepresented parties to redact confidential information and to file confidential documents separately from documents that do not contain confidential information.

In sum, Rule 1.1 and its comments define competence as having the appropriate knowledge to handle a client's matter, understanding the risks and benefits of technology, taking CLE courses relevant to an attorney's areas of practice, knowing the rules and procedures that apply to their areas of practice, and understanding and complying with the Public Access Policy.

Recent events highlight that some attorneys are lacking in the necessary competence in their areas of practice and that, perhaps, the CLE rules should be strengthened. My suggestion is to amend the CLE rules to require lawyers to take a specific number or percentage of credit hours in areas in which they practice or have an interest in practicing, and require lawyers to take a specific number or percentage of credit hours in technology-related subjects.

Why these changes? Because there is no obligation for attorneys to take courses in their practice areas, it is possible that they will instead take courses because they are offered at an exotic location or take courses merely because they need to obtain the relevant credit hours. In addition, technology pervades every aspect of the practice of law, and most attorneys are unfamiliar with many of the risks and benefits of technology. After all, would you be happy to know that the physician about to perform brain surgery on you has not taken a course in her medical field since she graduated from medical school 22 years ago? Of course not, and why should our clients feel any differently?

The first area to consider is competence to handle client matters. Everyone agrees that lawyers should stay abreast of the law and procedures that apply to their practices. But unless lawyers are certified specialists who are required to take a specific number or percentage of courses in their practice areas, the CLE rules do not require lawyers to take courses in an area in which they practice, or are interested in practicing. To the contrary, a lawyer who regularly handles contracts and never sets foot in a courtroom might take a four-hour CLE in criminal procedure because it was presented in Acapulco, or take a full day program on bankruptcy because it was offered the day before the compliance period ended.

These scenarios happen all the time. I regularly teach CLE courses, but my schedule is heaviest during late April, August and December, which are the months in which the Pennsylvania CLE compliance periods ends. While my courses are generally related to ethics, and apply to virtually every lawyer, I always peek into programs adjacent to mine and watch lawyers taking substantive CLEs who are reading their newspapers or texting because the subject matter of the program is irrelevant; they just must be “in the room.”

Online CLE courses can be abused more easily. Numerous lawyers relate how they purchase an online CLE, turn off the volume, and don't watch the program. Rather, they take care of other business, and merely click on the “Please confirm you are alive” button that appears intermittently to verify that they are actually watching the program. In reality, they are merely verifying that they are still breathing.

And of course, when it comes to competence to handle matters, many lawyers need even more guidance. Recently, I served as an arbitrator in Common Pleas Court, and observed case after case in which lawyers did not provide their clients with the most competent representation possible. Rather, their lack of competence made it difficult for the panel to rule in favor of their clients, even when we suspected we should. But without the proper evidence, the panel was constrained to finding against these people. One wonders why these attorneys have never taken one of the many CLEs on how to successfully arbitrate cases.

For example, in personal injury cases, CLE programs I attended taught me the need to include a summary page on any submissions that list the items being submitted into evidence, if the evidence includes medical records, list the names of each provider, dates of treatment and relevant diagnoses, insert tabs or dividers between the various sections to make it easy for the panel to find any desired records, highlight in the materials (and include the information on the summary page) which records are most relevant to the panel. To hand a panel a pile of 250 or more pages and expect them to “go fish” is asking a lot. And what if the panel fishes for a record that isn't helpful and never finds the one you believe is crucial to your client's case?

CLE programs have also taught me to ask the right questions and not get bogged down in minutiae. I have seen multiple attorneys ignore this maxim, and forget to ask a key question such as “How did the accident happen?”

I also learned that decorum matters, both in demeanor and in style. Thus, just because an arbitration panel is not comprised of judges does not mean that attorneys should walk into the hearing room chewing gum and take off their suit jackets. When these types of conduct happen, the panelists are rightly offended.

Competence in the practice is the seemingly easy part, even though it is possible for lawyers to be CLE-compliant without taking one credit hour in one of their practice areas.

When it comes to technology, many lawyers continue to have their heads miles deep in the sand. A variety of events brought this home. The first are discussions I have had with attorneys who believe that the technology comment is meaningless because they have no reason to know anything more about technology. After all, that's what their IT staff does.

Until, that is, they leave their iPad and smartphone in a cab, and realize that it contains all types of confidential information. Suddenly, it dawns on them that they never created a password for the device, never encrypted the SD card, and did not know that they could set up their devices to be remotely wiped if an unauthorized person accessed it.

Or, I ask if they have heard of any of the following: hackers, IP spoofing, social engineering, man-in-the-middle spoofing, DNS poisoning, trojans, cracks, worms, viruses, eavesdropping, spam, phishing, spyware, malware, ransomware, password cracking, network sniffing, back door/trap door, tunneling, website defacement, TCP/IP hijacking, replay attacks, system tampering and system penetration. These are just some of the ways computers and other devices can be attacked. Many lawyers believe, however, that attending a CLE to learn about these dangers is unnecessary.

These are often the same attorneys who won't attend a course about the new Public Access Policy. Come Jan. 6, 2018, if they fail to comply with the policy and a court imposes sanctions, perhaps then they will realize that attending a one or two-hour CLE on the topic would have been more productive than merely attending whatever course popped up during the final week of their compliance period.

Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of “Fee Agreements in Pennsylvania” (6^th Edition) and author of “Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms” (Second Edition), published by the Pennsylvania Bar Institute. He can be reached at [email protected].

Competence. It's a word whose meaning seems clear. One dictionary defines “competence” as “the ability to do something successfully or efficiently.” Rule of Professional Conduct 1.1 requires lawyers to “provide competent representation to a client,” explaining that “Competent representation requires the legal knowledge, skill, thoroughness and preparation reasonably necessary for the representation.” Under prior Disciplinary Rule 6-101(A)(1), competence meant that lawyers should not handle legal matters that they were not competent to handle.

If we were to conduct a poll, it is likely that most lawyers would respond that competence means have current knowledge about the areas of law in which they practice so that they can properly analyze a client's situation and provide appropriate advice. In other words, don't handle matters they aren't competent to handle.

Comment 1 to Rule 1.1 highlights this basic rule, stating that competence means that “a lawyer employs the requisite knowledge and skill in a particular matter.” This comment cites various factors, including “the relative complexity and specialized nature of the matter, the lawyer's general experience, the lawyer's training and experience in the field in question, the preparation and study the lawyer is able to give the matter and whether it is feasible to refer the matter to, or associate or consult with, a lawyer of established competence in the field in question.”

One judge summed up competence with the admonition, “Don't dabble.”

The definition of competence under Rule 1.1 is broader than the judge's. For example, Comment 8 to the rule explains that “to maintain the requisite knowledge and skill, a lawyer should keep abreast of changes in the law and its practice, including the benefits and risks associated with relevant technology, engage in continuing study and education and comply with all continuing legal education requirements to which the lawyer is subject.”

The Disciplinary Board has proposed broadening this comment further to include the following sentence, “to provide competent representation, a lawyer should be familiar with policies of the courts in which the lawyer practices, which include the Public Access Policy of the Unified Judicial System.” This amendment would require attorneys to read and know the rules and procedures for any court or other entity before which they appear, and comply with the Public Access Policy that goes into effect on Jan. 6, 2018, and requires lawyers and unrepresented parties to redact confidential information and to file confidential documents separately from documents that do not contain confidential information.

In sum, Rule 1.1 and its comments define competence as having the appropriate knowledge to handle a client's matter, understanding the risks and benefits of technology, taking CLE courses relevant to an attorney's areas of practice, knowing the rules and procedures that apply to their areas of practice, and understanding and complying with the Public Access Policy.

Recent events highlight that some attorneys are lacking in the necessary competence in their areas of practice and that, perhaps, the CLE rules should be strengthened. My suggestion is to amend the CLE rules to require lawyers to take a specific number or percentage of credit hours in areas in which they practice or have an interest in practicing, and require lawyers to take a specific number or percentage of credit hours in technology-related subjects.

Why these changes? Because there is no obligation for attorneys to take courses in their practice areas, it is possible that they will instead take courses because they are offered at an exotic location or take courses merely because they need to obtain the relevant credit hours. In addition, technology pervades every aspect of the practice of law, and most attorneys are unfamiliar with many of the risks and benefits of technology. After all, would you be happy to know that the physician about to perform brain surgery on you has not taken a course in her medical field since she graduated from medical school 22 years ago? Of course not, and why should our clients feel any differently?

The first area to consider is competence to handle client matters. Everyone agrees that lawyers should stay abreast of the law and procedures that apply to their practices. But unless lawyers are certified specialists who are required to take a specific number or percentage of courses in their practice areas, the CLE rules do not require lawyers to take courses in an area in which they practice, or are interested in practicing. To the contrary, a lawyer who regularly handles contracts and never sets foot in a courtroom might take a four-hour CLE in criminal procedure because it was presented in Acapulco, or take a full day program on bankruptcy because it was offered the day before the compliance period ended.

These scenarios happen all the time. I regularly teach CLE courses, but my schedule is heaviest during late April, August and December, which are the months in which the Pennsylvania CLE compliance periods ends. While my courses are generally related to ethics, and apply to virtually every lawyer, I always peek into programs adjacent to mine and watch lawyers taking substantive CLEs who are reading their newspapers or texting because the subject matter of the program is irrelevant; they just must be “in the room.”

Online CLE courses can be abused more easily. Numerous lawyers relate how they purchase an online CLE, turn off the volume, and don't watch the program. Rather, they take care of other business, and merely click on the “Please confirm you are alive” button that appears intermittently to verify that they are actually watching the program. In reality, they are merely verifying that they are still breathing.

And of course, when it comes to competence to handle matters, many lawyers need even more guidance. Recently, I served as an arbitrator in Common Pleas Court, and observed case after case in which lawyers did not provide their clients with the most competent representation possible. Rather, their lack of competence made it difficult for the panel to rule in favor of their clients, even when we suspected we should. But without the proper evidence, the panel was constrained to finding against these people. One wonders why these attorneys have never taken one of the many CLEs on how to successfully arbitrate cases.

For example, in personal injury cases, CLE programs I attended taught me the need to include a summary page on any submissions that list the items being submitted into evidence, if the evidence includes medical records, list the names of each provider, dates of treatment and relevant diagnoses, insert tabs or dividers between the various sections to make it easy for the panel to find any desired records, highlight in the materials (and include the information on the summary page) which records are most relevant to the panel. To hand a panel a pile of 250 or more pages and expect them to “go fish” is asking a lot. And what if the panel fishes for a record that isn't helpful and never finds the one you believe is crucial to your client's case?

CLE programs have also taught me to ask the right questions and not get bogged down in minutiae. I have seen multiple attorneys ignore this maxim, and forget to ask a key question such as “How did the accident happen?”

I also learned that decorum matters, both in demeanor and in style. Thus, just because an arbitration panel is not comprised of judges does not mean that attorneys should walk into the hearing room chewing gum and take off their suit jackets. When these types of conduct happen, the panelists are rightly offended.

Competence in the practice is the seemingly easy part, even though it is possible for lawyers to be CLE-compliant without taking one credit hour in one of their practice areas.

When it comes to technology, many lawyers continue to have their heads miles deep in the sand. A variety of events brought this home. The first are discussions I have had with attorneys who believe that the technology comment is meaningless because they have no reason to know anything more about technology. After all, that's what their IT staff does.

Until, that is, they leave their iPad and smartphone in a cab, and realize that it contains all types of confidential information. Suddenly, it dawns on them that they never created a password for the device, never encrypted the SD card, and did not know that they could set up their devices to be remotely wiped if an unauthorized person accessed it.

Or, I ask if they have heard of any of the following: hackers, IP spoofing, social engineering, man-in-the-middle spoofing, DNS poisoning, trojans, cracks, worms, viruses, eavesdropping, spam, phishing, spyware, malware, ransomware, password cracking, network sniffing, back door/trap door, tunneling, website defacement, TCP/IP hijacking, replay attacks, system tampering and system penetration. These are just some of the ways computers and other devices can be attacked. Many lawyers believe, however, that attending a CLE to learn about these dangers is unnecessary.

These are often the same attorneys who won't attend a course about the new Public Access Policy. Come Jan. 6, 2018, if they fail to comply with the policy and a court imposes sanctions, perhaps then they will realize that attending a one or two-hour CLE on the topic would have been more productive than merely attending whatever course popped up during the final week of their compliance period.

Daniel J. Siegel, principal of the Law Offices of Daniel J. Siegel, provides ethical guidance and Disciplinary Board representation for attorneys and law firms; he is the editor of “Fee Agreements in Pennsylvania” (6^th Edition) and author of “Leaving a Law Practice: Practical and Ethical Issues for Lawyers and Law Firms” (Second Edition), published by the Pennsylvania Bar Institute. He can be reached at [email protected].